David A. Plymyer: Political, Social & Random Commentary

Board of Appeals needs an overhaul.

Recent editorials in The Capital have suggested that the operations of the Anne Arundel County Ethics Commission and Board of License Commissioners should be reviewed. Add to that list the Board of Appeals. The board’s actions in a case brought before it by the Laurel Racing Association is an example of why changes to the composition and powers of the board are long overdue. [“Judge orders county Board of Appeals to drop Laurel Racing case,” The Capital, December 31, 2015.]

Long story short, the Board of Appeals disregarded settled Maryland law on the finality of administrative decisions in order to revisit past calculations made by the Department of Public Works (DPW) in the course of determining how much water and sewer capacity would be required for the proposed redevelopment of the race track property. The board in effect substituted its judgment for that of the engineers in DPW and issued a decision that would have resulted in a windfall to the property owners costing county water and sewer ratepayers approximately $5 million had the decision not been overturned by Judge Silkworth of the Circuit Court.

The board has undergone few changes since the adoption of the county charter in 1964, while county government has changed significantly. The county is now governed by a complex set of laws administered by engineers, planners, and other professionals. The primary role of the board is to apply county law to the facts of a case, which means that members of the board have to interpret county laws and make judgments as to whether standards and requirements set forth in the law have been satisfied. It is a role performed in most modern governments by legally-trained administrative law judges or hearing officers. None of the seven current members of the board are lawyers. Ask yourself if you would rather seek an opinion on a legal matter from a lawyer or from a panel of seven non-lawyers.

To add to the absurdity the board hears, on a de novo basis, appeals from decisions by the County Administrative Hearing Officer on applications for administrative re-zonings, critical area reclassifications, zoning special exceptions, and zoning variances. A de novo appeal means an entirely new hearing, as if the hearing held before the Administrative Hearing Officer never occurred. Although the County Charter does not require the Administrative Hearing Officer to be a lawyer, all of them since 1964 have been experienced, highly-competent lawyers. The proposition of having cases decided by an experienced, legally-trained hearing officer reheard and re-decided by seven lay persons is not only wasteful, it is a systemic invitation for the type of incorrect decision rendered in the Laurel Racing Association case.

The seven part-time members of the board could be replaced by three legally-trained administrative law judges who also would serve on a part-time basis. If de novo appeals were replaced with appeals based on the record created before the Administrative Hearing Officer the county could save a considerable amount of money and produce better results. This area of the country has an abundant number of retired and semi-retired judges, federal and state administrative law judges, and lawyers who would love to serve part-time as members of a reconstituted Board of Appeals at reasonable compensation.

I make this recommendation without much hope of persuading the County Council to pursue it. The reasons for my pessimism are two-fold. First of all, the County Council currently appoints the members of the Board of Appeals, with the informal arrangement being that each member of the council gets to name one member. It is one of only two “patronage” positions that a member gets to fill. Secondly, it is an accepted fact within the county that the private land use lawyers who regularly appear before the board tend to exercise an inordinate amount of influence over the decisions of the lay members of the board. It is likely that an experienced cadre of administrative law judges would not be as susceptible to the influence of the local land use bar, and that group of lawyers would lobby heavily against the change.